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Wills and Trusts > Week 4 > Flashcards

Week 4 Flashcards

1
Q

What is one of the main points of confusion about whether someone is a child or not?

A

Adoption

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2
Q

What are the two main reasons you have adoption?

A

There was a divorce or death, and the step-parent has become an adopted parent

When there has been an involuntary termination of parental rights (when the parents are around - social services are involved); foster parents have adopted

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3
Q

What is Minary v. Citizens Fidelity Bank & Trust Co. about?

Facts?

Issue?

Holding?

Rationale?

The take-away?

A

Adult adoption

Decedent’s son adopted his adult wife in the hopes of bringing his wife under the provisions of decedent’s trust in order for his wife to share in the proceeds from the trust.

Does adoption have intended effect?

No

The trial court erred in declaring Myra an heir of Amelia S. Minary. Even though the statute provides that the adoption of an adult shall be given the same legal effect as the adoption of a child, the court views this practice to be an act of subterfuge which in effect thwarts the intent of the ancestor whose property is being distributed and cheats the rightful heirs. Adopting an adult for the purpose of bringing that person within the provisions of a pre-existing testamentary instrument, when that person was clearly not intended to be covered by the instrument, should not be permitted.

Courts that don’t like statutory results will bend over backward to prevent inheritance through adult adoption.

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4
Q

Whom does CA not allow you to adopt? (2)

A

a spouse

a person older than you

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5
Q

What might some reasons for adult adoption? (3)

A

Adult stepchildren

Way to provide for a spouse (not really in CA)

A kind of substitute for domestic partnership for same-sex couples

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6
Q

What’s wrong with the Minary holding, i.e., considering which facts?

What does the holding reveal about the court?

A

After Amelia died, Alfred married Myra and just couldn’t have children; had Amelia known, would she have worded it the same?

They just don’t like adult adoption

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7
Q

What is O’Neal v. Wilkes about?

Facts?

Issue?

Holding?

Rationale?

Rule?

Relation to CA?

A

Equitable adoption

Appellant claims she is entitled to inherit from decedent as his virtually adopted daughter, and appeals from a judgment not withstanding the verdict, that was granted on the ground that appellant’s paternal aunt had no legal authority to enter into an adoption contract with decedent.

Does O’Neal take from the estate of Cook?

No

Wasn’t equitably adopted; the adoptee can’t unilaterally choose to be adopted and paternal aunt had no standing to adopt because father had not consented

A legal custodian does not have the right to consent to the adoption of a child, as this right is specifically retained by a child’s parent or guardian.

Applies in CA

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8
Q

What is the equitable adoption statute?

A

6455

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9
Q

What is the argument against O’Neal’s holding? (2)

A

Father abandoned; constructive consent

Equitable adoption should be about the needs of the child

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10
Q

What was the “State of Ford” about?

Rule? (2)

A

Equitable adoption

  1. Applies only to those whom through inadvertence or fault have not been legally adopted
  2. need clear and convincing evidence establishing intent to adopt
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11
Q

Does equitable adoption mean adoption?

When does adoption happen?

What result when adoption happens?

A

No; it’s just for the purpose of intestate succession

when papers signed by a judge

6451 applies

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12
Q

What are the two kinds of posthumous children?

Statutes for each?

A
  1. conceived before father dies, but born after father dies; has to not die in utero to take (6407)
  2. conceived and born after father dies (249.5)
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13
Q

What is “Woodward v. Commissioner of Social Security” about?

Facts?

Issue?

Holding?

Rationale?

A

Posthumous conception

Warren Woodward decided to put his semen in a holding bank so his wife could be artificially inseminated decided to After learning that he his sickness may later cause him to be sterile. After he died three years later, appellant, his wife, Lauren Woodward, wife became pregnant and bore children as a result of the insemination. The wife filed an application to receive her husband’s social security benefits on behalf of her children.

May posthumous children who are the result of artificial insemination receive social security benefits if their genes can be traced to the alleged father?

No

Posthumous conceived genetic children may not receive inheritance rights under an intestacy statue where the reproductive rights of the genetic parent are greatly infringed. It is within the best interests of children to be supported by their natural parents and the legislature has expressed this intent in creating intestacy statutes. Furthermore, the state conduct paternity suits in an orderly fashion by placing time constraints on the period in which parents may file for benefits. However in situations in which an individual chooses to medically preserve his gametes for use by his spouse, a number of years can pass before they are used. In that period of time other changed circumstances can intervene to change the individual’s mind. Therefore before a posthumous child may receive inheritance rights under statutory law, the decedent must have affirmatively consented to conception and to the support of any resulting child.

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14
Q

What’s a policy issue in Woodward?

Does this apply here? Why or why not?

A

Need to be able to distribute the estate; can’t hold it open just because there is some sperm in a bank

No; not about probate; about social security

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15
Q

What’s CA’s statute and rule (2), concerning posthumous conception?

A

249.5

Posthumously conceived children take if by clear and convincing evidence:

  1. Decedent (in writing) signed and dated the consent to the genetic material for conception to a specific person (mom)
  2. Child has to be in utero within two years of the establishment of death
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16
Q

What happens when a surrogate mother changes her mind and there is a contract on the terms?

When does this beccome important?

A

She is bound by the contract

When the child dies; whom does child’s estate go to?

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17
Q

What was the old rule for intestate advancements?

Why?

A

lifetime gifts were deducted from the intestate’s share

it was assumed that parents wanted equal distribution among children

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18
Q

What is the new rule for intestate advancements?

What are testate advacements called?

A

lifetime gifts of any kind are presumed not to be advancements on an intestate share

satisfaction

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19
Q

A, B, C: Children of decedent. A receives an advancement of $25,000, and the estate has $80,000.

What do you do?

How much to each?

What is this process called?

A

throw $25,000 back into the estate, so it’s $105,000. 105,000/3 = 35,000.

A gets $10,000; B gets $35,000; C gets $35,000

Hotchpot

20
Q

A gets 25,000. Estate is 45,000. A, B, C are heirs.

What does each get?

A

A = 0, B = 22.5k, C = 22.5k

(70,000… /3 = 23,333)

Just split the remainder among the other heirs equally; the one heir just gets that much more

21
Q

What is “In re Estate of Mahoney” about?

Facts?

Issue?

Holding?

Rationale?

Common law rule?

CA rule?

A

Slayer statutes

Appellant was convicted of manslaughter for the death of her husband, and appeals from a decree, wherein the probate court determined appellant was not entitled to a share of her deceased husband’s estate.

May a widow convicted of manslaughter in connection with the death of her husband from his estate?

Yes

Can have legal title, but court can create constructive trust to give equity to others

Allows merely felonious killing to deprive slayer of intestate share

Requires felonious and intentional killing to deprive slayer of intestate share

22
Q

Is there a Chancery court in CA?

A

No; Probate Court has equitable powers (power to create a constructive trust)

23
Q

What did the court forget in In re Estate of Mahoney?

A

To look at the intent of the killing; only a bar to intentional and felonious killing; if it was involuntary manslaughter, then no bar to succession (not a slayer)

24
Q

What is CA’s requirement to homicide bar to succession?

Statute?

A

Feloniously and intentionally kill someone (felony murder is not intentional)

250

25
Q

Can a judge in CA probate court have jurisdiction to do a criminal case?

Can a judge in a criminal court have jurisdition to do a probate court?

Why or why not?

A

Yes

Yes

All judges have all the same subject matter authority in CA

26
Q

Will there be a will on the final?

A

yes

27
Q

What is a will?

A

an instrument of conveyance of property that takes effect only upon the death of the person who wrote it (the testator)

28
Q

Does a will have legal significance while its testator is alive?

A

No; it’s ambulatory

29
Q

What is an ambulatory document?

A

something that can change and go away until some condition happens and has no legal signficance yet; a will is an example

30
Q

What is the law on capacity, in CA, i.e. what makes someone competent to make a will? (6)

What is the common law?

A

To be competent to make a will, the testator must (1) be an adult (age 18 or older) and must be capable of knowing and understanding in a general way:

  1. the nature and extent of his or her property,
  2. the natural objects of his or her bounty, and
  3. the disposition that he or she is making of that property, and must also be capable of
  4. relating these elements to one another and forming an orderly desire regarding the disposition of the property.

Same

31
Q

What about capacity and actual knowledge?

Otherwise, what would be the result?

A

The test is one of capability, not actual knowledge

If the test were one of actual knowledge, a reasonable mistake about whether your child was alive would render you mentally incompetent because you would not know the natural objects of your bounty (your family)

32
Q

What was In re Estate of Washburn about?

Facts?

Issue?

Holding?

Rationale?

A

Mental Capacity

Elder woman is changing her will constantly near the end of her life.

Did testator have mental capacity?

No

There was sufficient evidence for a reasonable trier of fact to determine, given all the circumstances, that the testatrix was incompetent to execute the will in question

33
Q

What is mental capacity? (2)

A

both organic (alzheimers) and external forces (pressure by children); usually talked about via internal factors by courts

34
Q

What is “Wilson v. Lane” about?

Facts?

Issue?

Holding?

Rationale? (2)

A

Mental Capacity

Someone dies and gives to her caretaker; heirs not cool with that; jury found lack of mental capacity.

Did the testator lack mental capacity?

No

‘A person is mentally capable to make a will if she has sufficient intellect to enable her to have a decided and rational desire as to the disposition of her property. ’

Here, at most, there was evidence that Greer was an eccentric woman whose mental health declined towards the end of her life: Greer had an irrational fear of flooding in her house;

She had trouble dressing and bathing herself; and

She unnecessarily called the fire department to report a non-existent fire. However, the court noted, ‘eccentric habits and absurd beliefs do not establish testamentary incapacity.’

35
Q

What is a proponent of a will?

What’s the adverse term?

A

Someone who wants a will admitted to probate

objectors

36
Q

Whom is the burden on for mental capacity?

A

The objectors to the will have the burden to show lack of mental capacity, by a preponderance of the evidence

37
Q

What is standard for overruling a jury verdit, i.e., the substantial evidence standard?

What about this and Wilson v. Lane?

A

Substantial evidence standard: must be no evidence that is admissible and relevant supporting the verdict in order to overrule that verdict

Court in Wilson v. Lane seems not to have used this standard; seem to have de novo looked at the evidence, e.g., looked at absence of expert testimony to say insufficient evidence

38
Q

What is insane delusion, with regard to mental capacity?

What to do when insane delusion comes up?

A

a subset of mental capacity

it has a different rule than mental capacity; if the facts indicate that insane delusion is the type of incapacity at issue, then use that test instead of the restatement

39
Q

What is the insane delusion test? (2)

A

contestor must show that:

  1. that the testator labored under an insane delusion when they wrote the will, and
  2. the insane delusion must materially affect the will
40
Q

What is an insane delusion?

A

a delusion is insane even if there is some factual basis for it, if a rational person in the testator’s situation could not have drawn the conclusion reached by the testator

41
Q

What was In re Strittmater about?

Facts?

Issue?

Holding?

Rationale?

What’s wrong with it? (2)

A

Insane delusion

Appellants appeal from a decree admitting decedent’s will to probate based on the ground that the decedent was insane when her will was executed. Will gave to National Woman’s Party. She allegedly hated men.

Did she have an insane delusion that caused a different disposition?

Yes

Bad: socially constructed rationale

(1) Seems to have reason to give to NWP, and even if she didn’t, (2) no clear causality: wasn’t close to family and they weren’t nice to her

42
Q

What was Breeden v. Stone about?

Facts?

Issue?

Holding?

Rationale?

A

Insane Delusion

Based on the testimony of a number of the decedent’s friends, the court found that the decedent’s moods were alternately euphoric, fearful, and depressed, and that he was excessively worried about threats against himself and his dog from government agents, friends, and others. Killed a person in a hit-and-run, (then wrote his holographic will) then killed his dog and himself.

Meet insane delusion test?

No

Insane delusion happened to cause an outcome that already resulted from a rational decision

43
Q

What is a holographic will?

A

hand-written will

44
Q

How do you approach a mental cacpaity question?

A
  1. is it an insane delusion; if so, do that test 2. if not an insane delusion, then do restatement mental capacity factors
45
Q

What else is barred if you’re a slayer? (3)

Statutes?

A

Non-probate; Taking by:

  1. Joint tenancy (251)
  2. Life insurance (252)
  3. All others (253)
46
Q

Who takes if someone is a slayer in CA? Their issue?

Statute?

A

Just as if the slayer predeceased; Yes (if alive and qualifying)

250(b)(1)

47
Q

What is important to remember about mental capacity and absurd beliefs?

A

absurd beliefs must be related to the disposition of property

Wills and Trusts (15 decks)

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